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United States v. Dunlap

United States District Court, D. Oregon, Medford Division

October 29, 2017


          OPINION & ORDER

          ANN AIKEN United States District Judge.

         The matter comes before the Court on Defendant Carl Gene Dunlap's Motion to Vacate or Correct Sentence under 28 U.S.C. § 2255. ECF No. 93. The Court has determined that no hearing is required and the motion is DENIED.


         Dunlap was convicted of Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1) following a jury trial in May 2015. Dunlap had three relevant prior convictions, all in Oregon: (1) a 2001 conviction for Robbery III; (2) a 2004 conviction for Assault III; and (3) a 2013 conviction for Coercion.

         At trial, Dunlap was represented by attorney Ronald Howen. For the sentencing stage of the case, Howen was joined by Brian Butler and Elizabeth Dailey of the Oregon Federal Public Defender's Office. After hearing extensive argument by counsel, the Court ruled that Dunlap's conviction for Robbery III was not a violent felony for purposes of the Armed Career Criminal Act (ACCA), but that Dunlap's convictions for Assault III and Coercion were violent felonies for purposes of the ACCA and "crimes of violence" for purposes of U.S.S.G. § 2K2.1 and 4B1.2. Opinion & Order, ECF No. 88, at 11, 15, 18.

         On February 17, 2016, Dunlap was sentenced to 120 months, concurrent with the remaining three months of a prior three-year sentence for Coercion imposed by the Oregon state courts. Dunlap did not file a direct appeal of his sentence.


         Under 28 U.S.C. § 2255, a federal prisoner in custody under sentence may move the court that imposed the sentence to vacate, set aside, or correct the sentence on the ground that:

[T]he sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack....

28 U.S.C. § 2255(a).

         To warrant relief, a petitioner must demonstrate that the error of constitutional magnitude had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Brechl v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Montaho, 331 F.3d 1052, 1058 (9th Cir. 2003) ("We hold now that Brecht's harmless error standard applies to habeas cases under section 2255, just as it does to those under section 2254.").

         A petitioner seeking relief under § 2255 must file his motion within the one-year statute of limitations set forth in § 2255(f). The limitations period runs one year from the latest of four dates: (1) when the judgment of conviction became final; (2) when the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) when the right asserted is initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; and (4) when the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence, 28 U.S.C, § 2255(f).

         Under § 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, '[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (alteration and emphasis in original) (quoting 28 U.S.C. § 2255). In determining whether a § 2255 motion requires a hearing, "[t]he standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted." United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011) (alteration in original, internal quotation marks and citation omitted). A district court may dismiss a § 2255 motion based on a facial review of the record "only if the allegations in the motion, when viewed against the record, do not give rise to a claim for relief or are 'palpably incredible or patently frivolous.'" Id. at 1062-63 (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)); see also United Slates v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980). Conclusory statements in a § 2255 motion are insufficient to require a hearing. Hearst, 638 F.2d at 1194.

         If a court denies a habeas petition, the court may issue a certificate of appealability if "jurists of reason could disagree with the district court's resolution of [the petitioner's] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see 28 U.S.C. § 2253(c)(1). Although the petitioner is not required to prove the merits of his case, he must demonstrate "something more than the absence of frivolity or the existence of mere good faith on his or her part." Miller-El, 537 U.S. at 338 (internal quotation marks and citation omitted).


         Dunlap's motion rests on four grounds: (1) Dunlap asserts that he was not given credit for time served, despite the Court's oral pronouncement that he would receive a concurrent sentence; (2) Dunlap argues that his state court conviction for Coercion is not a "crime of violence" under the sentencing guidelines; (3) Dunlap contends that his conviction for Assault III was not a "crime of violence" because he did not face punishment exceeding one year; and (4) Dunlap's counsel was ineffective for failing to file a direct appeal of Dunlap's sentence.

         I. Ineffective ...

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